13

2016

Immigration and the US Election (Part 2): Trump v. the Law

In part two of a four-part series, Kunal M. Parker, author of Making Foreigners (2015), reflects on immigration and the 2016 US Presidential Election.

With immigration at the forefront of this year’s US Presidential Election, and a decision from the Supreme Court on United States v. Texas expected at the end of June, we asked some of our authors to reflect on the ongoing debates over the future of immigration law and policy in the United States. This is part two of a four-part series.

Immigration issues frequently make the headlines in the United States. In the 2016 Presidential Election, however, they have been more prominent—and divisive—than ever.

The Republican candidate for the Presidency, Donald Trump, has engendered considerable enthusiasm among his (largely white male) supporters by promising to build a wall along the U.S.-Mexico border to keep out undocumented immigrants. Albeit with some subsequent backtracking, Mr. Trump has also suggested that the U.S. temporarily suspend the immigration of Muslims as a “fix” for the problem of terrorist incidents such as the attack in San Bernardino, California in December 2015. To be sure, if Mr. Trump has won support because of these pronouncements, he has also faced the wrath of many, especially—but not only—among Latino voters. The disruption of Mr. Trump’s rallies across the country is testimony to his ability to inspire anger and resentment.

To most immigration scholars, Mr. Trump’s proposals are opportunistic and extremist, but largely unworkable. It is probably true that, given existing constitutional precedents, the United States could temporarily suspend the immigration of Muslims. However, such a proposal would be extremely costly to the United States internationally. It has even won the condemnation of the United Kingdom’s Tory Prime Minister, David Cameron, to say nothing of the reactions of the United States’ numerous allies in the Muslim world. Mr. Trump’s wall idea, while hardly original, also faces few constitutional barriers. Even if logistically workable, it would cost the United States the goodwill of Mexico, a neighbor and important economic partner. Occasionally, Mr. Trump sounds as if he does not know how international politics work. For example, he floated the idea that Mexico would pay for the wall, but apparently did not consult with Mexican leaders. Not surprisingly, Mexican politicians have scoffed at him.

Despite their patent unworkability, Mr. Trump’s proposals about immigration remain significant. In my recent book, Making Foreigners: Immigration and Citizenship Law in America, 1600 – 2000 (2015), I cover the long history of American immigration and citizenship law to show that, in addition to regulating the entry and presence of outsiders, Americans have also imposed upon many insiders the status of foreigners. The list of what I call “internal foreigners”—a list that has at different points included women, African Americans, Latino Americans, Asian Americans, Native Americans, the poor, and political minorities—is extensive. One of the ways in which “internal foreigners” have been produced is by deliberately blurring the difference between those outside the country and those inside it. The demonization of immigrants seeking to enter the country has mingled freely, in other words, with the demonization of citizens and resident immigrants of particular racial or ethnic backgrounds.

The United States v. Texascase that the U.S. Supreme Court will rule on this month raises related issues. While the case is formally about the ability of states to challenge federal executive actions on immigration, it reflects the politics of the “new immigration federalism.” In a world in which a divided Congress has been unable to pass major immigration legislation in close to two decades, much of the action has shifted to the state and local levels. This has been a mixed bag for immigrants: Republican-dominated states in the South and Southwest have been hostile to immigrants, while Democrat-dominated states in the Northeast and West have been largely welcoming of them. In both cases, local governments have adopted policies that are potentially at odds with federal policy. Regardless of how the federalism issue is sorted out, however, we must be aware that a return to the local also carries with it the risk of creating “internal foreigners.” If states are allowed to enact immigration policies, the victims could be not just immigrants but also Americans of particular ethnic, racial, or national backgrounds. Those who celebrate immigration federalism should study immigration restriction in antebellum America, a subject to which Making Foreigners devotes a chapter. Immigration remained at the state level in the antebellum period, I argue, because of the non-citizenship of free blacks and because of the insistence of slave states on their right to exclude out-of-state free blacks from their territories. It was only after the passage of the Fourteenth Amendment to the U.S. Constitution, which assured native-born blacks citizenship, that the issue of state-level immigration regimes was put to rest, paving the way for federal control (incidentally, the Birthright Citizenship Clause of the Fourteenth Amendment is something else that Mr. Trump would like to change).

The immigration issues facing the United States are unquestionably complex. They require tough choices. Finding an ethical way of working through these issues, while being sensitive to their impact on immigrants and Americans, will prove extremely challenging in coming year. Unfortunately, the campaign rhetoric of Mr. Trump seems likely to exacerbate problems both at the border and inside it.

Kunal Parker is a Professor of Law and Dean's Distinguished Scholar at the University of Miami School of Law. His first book, Common Law, History, and Democracy in America, 1790–1900: Legal Thought before Modernism was published by Cambridge University Press in 2011....